In a significant ruling for employers, the U.S. Court of Appeals for the Eleventh Circuit issued a decision on March 21, 2019, in Lewis v. City of Union City, providing crucial clarification on the comparator definition in intentional discrimination claims. The court, ruling in favor of the employer’s summary judgment motion, rejected previous, often-used standards like “nearly identical” or “same or similar.” Instead, it established a new benchmark, requiring that comparators be “similarly situated in all material respects.” This decision, impacting Florida, Georgia, and Alabama, offers employers in the Eleventh Circuit clearer guidelines for employee management and discrimination defense, though it necessitates a detailed, fact-specific analysis in each case.
Background of the Case
Jacqueline Lewis, an African-American detective with the Union City Police Department, forms the center of this case. After returning to work in 2009 following a heart attack, with no work restrictions, a new department policy in 2010 mandated all officers to carry Tasers. This policy included a requirement for officers to receive a five-second Taser shock as part of their training, designed to provide firsthand experience for better judgment on Taser usage and courtroom testimony. Lewis was also required to undergo pepper spray training.
However, Lewis’s physician advised the department against administering Taser shocks or pepper spray “on or near” her due to pre-existing chronic conditions, including her heart condition. Based on these medical restrictions, the police chief concluded that Lewis could not fulfill the essential functions of her detective role. Consequently, she was placed on administrative leave pending medical clearance for “full and active duty.” After exhausting her accrued leave and failing to submit Family and Medical Leave Act paperwork for additional leave, Lewis was terminated under the Union City Personnel Policy, which designates “[a]ny unapproved leave of absence [is] cause for dismissal.”
Subsequently, Lewis initiated legal action, alleging race and gender discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, and 42 U.S.C. § 1981. She also brought claims under the Americans with Disabilities Act of 1990, though these were not central to the en banc court’s review. To support her discrimination claims, Lewis presented two white male officers as comparators. These officers had failed fitness tests in 2013 and 2014 and were granted 90-day administrative leaves to improve their fitness. The district court initially granted summary judgment to the defendants, determining that Lewis’s chosen comparators did not meet the “nearly identical” or “same or similar” standard required to establish a prima facie case of discrimination. An initial Eleventh Circuit panel reversed this decision, finding that there was “a genuine issue of material fact,” particularly regarding the validity of the male officers as comparators, and rejecting the “nearly identical” test in this context. The en banc decision was then undertaken to resolve this critical issue of comparator definition.
Majority Legal Analysis: Defining “Similarly Situated”
The Eleventh Circuit’s majority opinion delved into the critical aspect of establishing intentional discrimination in the absence of direct evidence. The court reaffirmed the McDonnell Douglas burden-shifting framework. This framework requires a plaintiff to first establish a prima facie case of discrimination. To do so, a plaintiff must demonstrate that:
- They belong to a protected class.
- They experienced an adverse employment action.
- They were qualified for the job in question.
- The employer treated “similarly situated” employees outside their protected class more favorably.
Upon establishing a prima facie case, the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for their actions. If the defendant meets this burden, the plaintiff must then prove that the defendant’s stated reason was pretextual, ultimately demonstrating that intentional discrimination occurred.
In Lewis, the court rejected the plaintiff’s argument to defer the “similarly situated” analysis to the pretext stage, asserting that this would improperly shift the burden of disproving discrimination to the defendant. The court emphasized that “discrimination is inherently a comparative concept,” requiring an evaluation of whether comparable individuals are treated differently. Without a meaningful comparison at the prima facie stage, it becomes impossible to infer discriminatory intent. Therefore, the comparator definition is a foundational element of a discrimination claim and must be addressed early in the analysis.
The court then evaluated the adequacy of existing “nearly identical” and “same or similar” comparator standards, as well as the Seventh Circuit’s less stringent approach, which requires only that differences between the plaintiff and comparators not render the comparison “effectively useless.” Finding these existing tests either too rigid or too lenient, the Eleventh Circuit adopted a new standard: “a plaintiff must show that she and her comparators are ‘similarly situated in all material respects.’” This new comparator definition aims to balance protecting employees from discrimination with respecting employers’ legitimate business judgments, while also promoting judicial efficiency by allowing for summary judgment in appropriate cases.
While acknowledging that the “all material respects” standard requires a case-by-case analysis, the court offered several guideposts to aid courts and employers in determining what constitutes a “similarly situated comparator.” According to the court, a valid comparator:
- “will have engaged in the same basic conduct (or misconduct) as the plaintiff”;
- “will have been subject to the same employment policy, guideline, or rule as the plaintiff”;
- “will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff”;
- “will share the plaintiff’s employment or disciplinary history”; and
- may not necessarily have the same job title or identical job functions.
Applying this new comparator definition to Lewis, the court upheld the summary judgment. The court reasoned that Lewis failed to demonstrate that her proposed comparators were similarly situated in all material respects. Key differences included that the male officers were granted leave under a policy implemented two years after Lewis’s termination, their fitness issues stemmed from different underlying conditions, and they failed distinct physical fitness benchmarks compared to Lewis’s inability to meet the Taser/pepper spray training requirement.
Dissenting Opinion
Three judges dissented, agreeing with the majority’s newly defined comparator definition but disagreeing with its application in this case. The dissent argued that the majority’s implementation unduly favors employers, making it harder for plaintiffs to survive summary judgment. The dissenting judges contended that Lewis and the male officers were indeed similarly situated in all material respects because all were placed on involuntary administrative leave due to being physically unfit for duty. They argued that the distinguishing factors cited by the majority—different policies, conditions, and timing—should be considered at later stages of litigation, not at the prima facie stage, where the plaintiff’s initial burden is intentionally “not onerous.”
Key Implications for Employers
This Eleventh Circuit decision provides significant clarity regarding the comparator definition in discrimination cases, particularly for employers within its jurisdiction. The ruling emphasizes that in the absence of direct evidence of discrimination, plaintiffs must demonstrate that truly comparable employees were treated more favorably. The court clarified that the treatment of employees occurring years after the plaintiff’s termination, under different circumstances and policies, cannot typically establish a prima facie case of discrimination.
This decision is beneficial for employers in the Eleventh Circuit as it reinforces the importance of defensible business judgments. However, employers should be cautioned against relying on superficial differences in job titles or duties to justify disparate treatment of otherwise similarly situated employees. The “similarly situated in all material respects” standard necessitates a thorough and nuanced analysis of the specific facts and circumstances of each employment decision. Employers should ensure that their employment policies are consistently applied to genuinely comparable employees to mitigate the risk of discrimination claims and to successfully defend against such claims by demonstrating a lack of valid comparators under this newly clarified comparator definition.
